Supreme Court May Hear '800-Pound Gorilla' of Election Law Cases [View all]

[In It to Win It]

NY Times

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WASHINGTON — In October 2020, with the presidential election looming, four conservative justices issued opinions that seemed prepared to endorse a legal theory that would radically reshape how federal elections are conducted. The theory would give state legislatures independent power, not subject to review by state courts, to set election rules at odds with state constitutions, and to draw congressional maps warped by partisan gerrymandering.

But the Supreme Court did not resolve the existence or scope of the theory, often called the independent state legislature doctrine, in cases concerning the 2020 election.

The question arose again this March in an emergency application from Republicans in North Carolina who wanted to restore a voting map drawn by the State Legislature and rejected as a partisan gerrymander by the State Supreme Court.

“The question presented here,” the application said, “goes to the very core of this nation’s democratic republic: what entity has the constitutional authority to set the rules of the road for federal elections.”

Three justices said they would have granted the application.

“This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections,” Justice Samuel A. Alito Jr. wrote, joined by Justices Clarence Thomas and Neil M. Gorsuch.

Justice Brett M. Kavanaugh agreed that the question was important. “The issue is almost certain to keep arising until the court definitively resolves it,” he wrote.

The North Carolina case concerns the Constitution’s Elections Clause. It says: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”

That means, the pending petition argued, that the state legislature has sole responsibility among state institutions for drawing congressional districts and that state courts have no role to play.